The concept of "issuing judicial authority" by the Court of Justice of the European Union in the cases C-508/18 and C-82/19 PPU (Parquet of Lübeck) and possible echoes in the European Investigator Order in Portugal

Abstract

In the interpretation given by the Court of Justice of the European Union, in the Parquet de Lübeck case, which deals with matters relative to the European arrest warrant, relative to the concept of “issuing judicial authority”, Prosecutors are excluded because they may be, directly or indirectly, permeable to the executive branch. In turn, the Public Prosecutor's Office is an “issuing authority” for European investigative orders in criminal matters, under the terms of article 3, paragraph c), of Law no. 88/2017, of 21^st of August, that transposed Directive 2014/41/ EU, of the European Parliament and of the Council, of 3^rd of April 2014. Taking into account the autonomy and hierarchy of the Public Prosecutor's Office as well as the method of appointment and dismissal of the Attorney General, we seek to consider whether what was decided in the aforementioned Judgment would have any repercussions on the level of the Public Prosecutor's authority to issue an European investigation order. We concluded in a negative sense. The Public Prosecutor's Office does not depend on the Minister of Justice. The Office is consecrated in the Constitution and its attributions are defined in the law and legislation that disciplines its legal status. It can only issue a European investigation order restricted to procedural acts that are within its competence under domestic law.